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Evolution of the Right to Health

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1 Evolution of the Right to Health
Part II by Thomas A. Gionis, MD JD MBA MHA FICS FRCS United States Fulbright Scholar in Law Chairman, American Board of Healthcare Law and Medicine Adjunct Professor of Law, St. Thomas University School of Law

2 The International Bill of Human Rights World Health Organization
Evolution of the Right to Health The International Bill of Human Rights Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Civil and Political Rights Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty WHO World Health Organization

3 Start of the Evolution of the Right to Health:
the Public’s Health

4 Start of the Evolution of the Right to Health:
the Public’s Health Ancient Egypt; Greece Pre-19th Century Europe; German Police 19th Century Europe England: Bentham / Chadwick: Relationship between the predicaments of the poor - - and the effects – sanitary dangers of the “civilized society.”

5 United Nations (after WW II)
Evolution of the Right to Health Development of International Health Organizations League of Nations ILO 1919 OIHP (Conventions) Health Organization of the League of Nations [President Roosevelt’s Four-Freedoms Speech, 1941] April 18, 1946 League of Nations dissolved itself transferred its mission and assets to the United Nations (after WW II)

6 Evolution of the Right to Health
Development of International Health Organizations League of Nations ILO United Nations President Roosevelt’s Four-Freedoms Speech, 1941 Freedom of Speech and Expression; Freedom to Worhsip God in one’s own way; Freedom of Want; Freedom from Fear.

7 Evolution of the Right to Health
Development of International Health Organizations League of Nations ILO 1919 United Nations (UN) 1945 World Health Organization (WHO) 1948

8 Evolution of the Right to Health
Development of International Health Organizations Formulation of Health as a Human Right UN Charter LN (UN) (WHO) 1948 United Nations Conference on International Organization & Memorandum Caused insertion of a reference to “Health” in Article 13, Chapter IV Article 55, Chapter IX Article 57, Chapter IX Article 62, Chapter X

9 ‘Highest attainable standard of health’
Evolution of the Right to Health Development of International Health Organizations Formulation of Health as a Human Right LN (UN) (WHO) 1948 Preamble Draft of the WHO Constitution March- April 1946 WHO Constitution April 7, 1948 Main difference between draft of texts: ‘Right to Health’ ‘Highest attainable standard of health’

10 Evolution of the Right to Health
Development of International Health Organizations Formulation of Health as a Human Right WHO Constitution Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

11 Evolution of the Right to Health
Development of International Health Organizations Formulation of Health as a Human Right WHO Constitution The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

12 Evolution of the Right to Health
Development of International Health Organizations Formulation of Health as a Human Right WHO Constitution The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States.

13 Evolution of the Right to Health
Development of International Health Organizations Formulation of Health as a Human Right WHO Constitution Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.

14 Legal Effect – WHO Constitution
Evolution of the Right to Health Legal Effect – WHO Constitution Constitutions of international organizations, and therefore also the Constitution of the WHO, are multilateral treaties according to public international law. The Constitution of the WHO is therefore binding upon States that are a party to the WHO. State parties will accordingly have to comply with the international “right to health” as set forth in the preamble to the WHO Constitution.

15 Declaration of Alma-Ata
Evolution of the Right to Health WHO – “Primary Health Care” Declaration of Alma-Ata International Conference on Primary Health Care, Alma-Ata, USSR, September 1978 Organized by WHO and UNICEF

16 Declaration of Alma-Ata
Evolution of the Right to Health WHO – “Primary Health Care” Declaration of Alma-Ata The Declaration expressed the responsibility of Governments for the health of their people.

17 Declaration of Alma-Ata
Evolution of the Right to Health WHO – “Primary Health Care” Declaration of Alma-Ata “Primary Health Care” is to be considered ‘essential health care which is to be made universally accessible to individuals and families in the community in ways acceptable to them, through their full participation and at a cost that the community can afford.”

18 Declaration of Alma-Ata
Evolution of the Right to Health WHO – “Primary Health Care” Declaration of Alma-Ata VII. Primary health care: (1). reflects and evolves from the economic conditions and sociocultural and political characteristics of the country and its communities and is based on the application of the relevant results of social, biomedical and health services research and public health experience;

19 Declaration of Alma-Ata
Evolution of the Right to Health WHO – “Primary Health Care” Declaration of Alma-Ata VII. Primary health care: (2). addresses the main health problems in the community, providing promotive, preventive, curative and rehabilitative services accordingly;

20 Declaration of Alma-Ata
Evolution of the Right to Health WHO – “Primary Health Care” Declaration of Alma-Ata VII. Primary health care: (3). includes at least: (a). education concerning prevailing health problems and the methods of preventing and controlling them; (b). promotion of food supply and proper nutrition; (c). an adequate supply of safe water and basic sanitation; (d). maternal and child health care, including family planning;

21 Declaration of Alma-Ata
Evolution of the Right to Health WHO – “Primary Health Care” Declaration of Alma-Ata VII. Primary health care: (3). includes at least: (e). immunization against the major infectious diseases; (d). prevention and control of locally endemic diseases; (e). appropriate treatment of common diseases and injuries; (f). and provision of essential drugs;

22 Evolution of the Right to Health
Part II by Thomas A. Gionis, MD JD MBA MHA FICS FRCS United States Fulbright Scholar in Law Chairman, American Board of Healthcare Law and Medicine Adjunct Professor of Law, St. Thomas University School of Law

23 Evolution of the Right to Health: Documentary Evidence
United Nations Universal Declaration of Human Rights (1948) Article 25. (1). Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2). Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

24 Protocol of San Salvador
Evolution of the Right to Health: Documentary Evidence Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights Protocol of San Salvador Article 10 (1). Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being. (Recall: WHO: “enjoyment of the highest attainable standard of health” )

25 Protocol of San Salvador
Evolution of the Right to Health: Documentary Evidence Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights Protocol of San Salvador Article 10 (2). In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good and, particularly, to adopt the following measures to ensure that right: (a). Primary health care, that is, essential health care made available to all individuals and families in the community; (b). Extension of the benefits of health services to all individuals subject to the State’s jurisdiction;

26 Protocol of San Salvador
Evolution of the Right to Health: Documentary Evidence Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights Protocol of San Salvador Article 10 (2). (c). Universal immunization against the principal infectious diseases; (d). Prevention and treatment of endemic, occupational and other diseases; (e). Education of the population on the prevention and treatment of health problems;

27 Protocol of San Salvador
Evolution of the Right to Health: Documentary Evidence Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights Protocol of San Salvador Article 10 (2). (f). Satisfaction of the health needs of the highest risk groups and of those whose poverty makes them the most vulnerable.

28 Evolution of the Right to Health: Documentary Evidence
Convention on the Rights of the Child (CRC) Article 24 (1). States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

29 Evolution of the Right to Health: Documentary Evidence
Convention on the Rights of the Child (CRC) Article 24 (2). States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a). To diminish infant and child mortality; (b). To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

30 Evolution of the Right to Health: Documentary Evidence
Convention on the Rights of the Child (CRC) Article 24 (2). (c). To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking- water, taking into consideration the dangers and risks of environmental pollution; (d). To ensure appropriate pre-natal and post-natal health care for mothers;

31 Evolution of the Right to Health: Documentary Evidence
Convention on the Rights of the Child (CRC) Article 24 (2). (e). To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents; (f). To develop preventive health care, guidance for parents and family planning education and services.

32 Evolution of the Right to Health: Documentary Evidence
Convention on the Elimination of All Forms of Racial Discrimination Article 5(e)(iv) [provides that States Parties undertake to prohibit and eliminate racial discrimination in the enjoyment of] "the right to public health, medical care, social security and social Services."

33 Evolution of the Right to Health: Documentary Evidence
Convention on the Elimination of All Forms of Discrimination Against Women Article ll(l)(f) [provides that State Parties shall take all appropriate measures to eliminate discrimination against women in the enjoyment of] "the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction."

34 Evolution of the Right to Health: Documentary Evidence
Convention on the Elimination of All Forms of Discrimination Against Women Article 12 [provides that all appropriate measures should be taken by States Parties to eliminate discrimination against women] "in the field of health care in order to ensure on a basis of equality of men and women, access to health care services, including those related to family planning."

35 Evolution of the Right to Health: Documentary Evidence
African Charter on Human and Peoples' Rights Article 16 Every individual shall have the right to enjoy the best attainable state of physical and mental health. Recall: Protocol of San Salvador Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being. WHO: “enjoyment of the highest attainable standard of health”

36 Evolution of the Right to Health: Documentary Evidence
American Declaration of the Rights and Duties of Man Article XI: Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources.

37 Evolution of the Right to Health: Documentary Evidence
International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49.

38 Health as a Limiting or Restrictive Covenant
Evolution of the Right to Health: Documentary Evidence International Covenant on Civil and Political Rights Health as a Limiting or Restrictive Covenant Article 12 Liberty of Movement Article 18 Freedom of thought, conscience and religion Article 19 Freedom of expression Article 21 Freedom of peaceful assembly Article 22 Freedom of association

39 Evolution of the Right to Health: Documentary Evidence
International Covenant on Civil and Political Rights Article 12  (1). Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2). Everyone shall be free to leave any country, including his own. (3). The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

40 Evolution of the Right to Health: Documentary Evidence
International Covenant on Civil and Political Rights Article 18  (1). Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. (2). No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. (3). Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

41 Evolution of the Right to Health: Documentary Evidence
International Covenant on Civil and Political Rights Article 19  (1). Everyone shall have the right to hold opinions without interference. (2). Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. (3). The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a). For respect of the rights or reputations of others; (b). For the protection of national security or of public order (ordre public), or of public health or morals.

42 Evolution of the Right to Health: Documentary Evidence
International Covenant on Civil and Political Rights Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

43 Evolution of the Right to Health: Documentary Evidence
International Covenant on Civil and Political Rights Article 22 (1). Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. (2). No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

44 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976.

45 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights Article 7 Work Conditions Article 10 Family Article 12 Right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

46 Evolution of the Right to Health: Documentary Evidence
International Covenant on Civil and Political Rights Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted … (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays . . .

47 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights Article 10 The States Parties to the present Covenant recognize that: (1). The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. (2). Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.

48 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights Article 10 The States Parties to the present Covenant recognize that: (3). Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. (4). Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

49 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights Article 12 (1). The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (2). The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a). The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

50 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights Article 12 (2). (b). The improvement of all aspects of environmental and industrial hygiene; (c). The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d). The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

51 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS Twenty-second session, Geneva, 25 April-12 May 2000 Agenda item 3 SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS General Comment No. 14 (2000) The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights)

52 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “Health is a fundamental human right indispensable for the exercise of other human rights. ”

53 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.” “The realization of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programmes developed by the World Health Organization (WHO), or the adoption of specific legal instruments.” “Moreover, the right to health includes certain components which are legally enforceable .”

54 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The human right to health is recognized in numerous international instruments : Universal Declaration of Human Rights, Article 25.1 International Covenant on Economic, Social and Cultural Rights, Article 12.1 International Convention on the Elimination of All Forms of Racial Discrimination of 1965, Article 5 (e) (iv) Convention on the Elimination of All Forms of Discrimination against Women of 1979, Articles 11.1 (f) Rights of the Child of 1989, Article 24”

55 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “Several regional human rights instruments also recognize the right to health, such as the European Social Charter of 1961 as revised, Article 11, African Charter on Human and Peoples' Rights of 1981, Article 16 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988, Article 10 “

56 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “Similarly, the right to health has been proclaimed by the Commission on Human Rights, 1989 Vienna Declaration and Programme of Action, 1993 The Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (adopted by the United Nations General Assembly, 1991 (resolution 46/119) and the Committee's General Comment No. 5 on persons with disabilities)”

57 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “Similarly, the right to health has been proclaimed by the Programme of Action of the International Conference on Population and Development , Cairo, 1994 Declaration and Programme for Action of the Fourth World Conference on Women; Beijing, 1995 ”

58 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health. ”

59 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “In drafting article 12 of the Covenant, the Third Committee of the United Nations General Assembly did not adopt the definition of health contained in the preamble to the Constitution of WHO, which conceptualizes health as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity".

60 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 However, the reference in article 12.1 of the Covenant to "the highest attainable standard of physical and mental health" is not confined to the right to health care.” On the contrary, the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.

61 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 General Comment focuses on Normative content of Article 12 (Part I) States parties' obligations (Part II) Violations (Part III) Implementation at the national level (Part IV) Obligations of actors other than States parties (Part V)

62 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 Article 12.1 provides a definition of the right to health, while article 12.2 enumerates illustrative, non-exhaustive examples of States parties' obligations.

63 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights Article 12 (1). The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (2). The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a). The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

64 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights Article 12 (2). (b). The improvement of all aspects of environmental and industrial hygiene; (c). The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d). The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

65 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 The right to health contains both freedoms and entitlements. The freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

66 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The notion of "the highest attainable standard of health" in article 12.1 takes into account both the individual's biological and socio-economic preconditions and a State's available resources.” “There are a number of aspects which cannot be addressed solely within the relationship between States and individuals; in particular, good health cannot be ensured by a State, nor can States provide protection against every possible cause of human ill health.”

67 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “Thus, genetic factors, individual susceptibility to ill health and the adoption of unhealthy or risky lifestyles may play an important role with respect to an individual's health.” “Consequently, the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.”

68 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “Since the adoption of the two International Covenants in 1966 the world health situation has changed dramatically and the notion of health has undergone substantial changes and has also widened in scope.” More determinants of health are being taken into consideration, such as resource distribution, gender differences, violence and armed conflict, HIV/AIDS, cancer, & rapid growth of the world population, have created new obstacles for the realization of the right to health which need to be taken into account when interpreting Article 12.

69 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The Committee interprets the right to health, as defined in article 12.1, as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.”

70 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health in all its forms and at all levels contains the following interrelated and essential elements, the precise application of which will depend on the conditions prevailing in a particular State party:

71 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (a) Availability. Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party. The precise nature of the facilities, goods and services will vary depending on numerous factors, including the State party's developmental level.

72 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (a) Availability. They will include, however, the underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel receiving domestically competitive salaries, and essential drugs, as defined by the WHO Action Programme on Essential Drugs.

73 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (b). Accessibility Non-discrimination Physical accessibility Economic accessibility (affordability) Information accessibility

74 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (b). Accessibility Non-discrimination: health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds ;

75 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : Non-discrimination: “proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health”

76 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (b). Accessibility Physical accessibility: health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. Accessibility also implies that medical services and underlying determinants of health, such as safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural areas.

77 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (b). Accessibility Economic accessibility (affordability): health facilities, goods and services must be affordable for all. Payment for health-care services, as well as services related to the underlying determinants of health, has to be based on the principle of equity are affordable for all, including socially disadvantaged groups.

78 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (b). Accessibility Information accessibility: accessibility includes the right to seek, receive and impart information and ideas concerning health issues.

79 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (c). Acceptability All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned.

80 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 “The right to health essential elements ” : (d). Quality As well as being culturally acceptable, health facilities, goods and services must also be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation.

81 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 Article 12.2(a); Right to maternal, child & reproductive health "The provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child” may be understood as requiring measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information.

82 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 Article 12.2 (b); Right to healthy natural and workplace environments "The improvement of all aspects of environmental and industrial hygiene“ “comprises the requirement to ensure an adequate supply of safe and potable water and basic sanitation; the prevention and reduction of the population's exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health.”

83 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 Article 12.2 (c); Right to prevention, treatment and control disease "The prevention, treatment and control of epidemic, endemic, occupational and other diseases" “requires the establishment of prevention and education programmes for behaviour-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS, and those adversely affecting sexual and reproductive health, and the promotion of social determinants of good health, such as environmental safety, education, economic development and gender equity.”

84 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 Article 12.2 (c); Right to prevention, treatment and control disease "The prevention, treatment and control of epidemic, endemic, occupational and other diseases" “The right to treatment includes the creation of a system of urgent medical care in cases of accidents, epidemics and similar health hazards, and the provision of disaster relief and humanitarian assistance in emergency situations.”

85 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 Article 12.2 (c); Right to prevention, treatment and control disease "The prevention, treatment and control of epidemic, endemic, occupational and other diseases" “The control of diseases refers to States' individual and joint efforts to, inter alia, make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control.”

86 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 Article 12.2 (d); Right to health facilities, goods and services "The creation of conditions which would assure to all medical service and medical attention in the event of sickness both physical and mental” includes the provision of equal and timely access to basic preventive, curative, rehabilitative health services and health education; regular screening programmes; appropriate treatment of prevalent diseases, illnesses, injuries and disabilities; the provision of essential drugs; & appropriate mental health treatment and care.

87 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS General legal obligations “While the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect.”

88 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS General legal obligations “States parties have immediate obligations in relation to the right to health, such as the guarantee that the right will be exercised without discrimination of any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full realization of article 12. Such steps must be deliberate, concrete and targeted towards the full realization of the right to health.”

89 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS General legal obligations “The progressive realization of the right to health over a period of time should not be interpreted as depriving States parties' obligations of all meaningful content. Rather, progressive realization means that States parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of article 12. ”

90 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS General legal obligations The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil.

91 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS General legal obligations The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees.

92 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS General legal obligations Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health. The obligation to fulfil contains obligations to facilitate, provide and promote.

93 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Respect of the Right of Health In particular, States are under the obligation to respect the right to health by, inter alia, by (1). refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services;

94 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Respect of the Right of Health (2). abstaining from enforcing discriminatory practices as a State policy; (3). abstaining from imposing discriminatory practices relating to women's health status and needs. (4). refraining from prohibiting or impeding traditional preventive care, healing practices and medicines

95 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Respect of the Right of Health (5). refraining from marketing unsafe drugs (6). refraining from applying coercive medical treatments (7). refraining from limiting access to contraceptives and other means of maintaining sexual and reproductive health,

96 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Respect of the Right of Health (8). refraining from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, (9). refraining from preventing people's participation in health- related matters.

97 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Respect of the Right of Health (10). refraining from unlawfully polluting air, water and soil, e.g. through industrial waste from State-owned facilities, from using or testing nuclear, biological or chemical weapons if such testing results in the release of substances harmful to human health, (11). refraining from limiting access to health services as a punitive measure, e.g. during armed conflicts in violation of international humanitarian law.

98 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Protect the Right of Health (1). the duties of States to adopt legislation or to take other measures ensuring equal access to health care and health- related services provided by third parties; (2). to ensure that privatization of the health sector does not constitute a threat to the availability, accessibility, acceptability and quality of health facilities, goods and services;

99 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Protect the Right of Health (3). to control the marketing of medical equipment and medicines by third parties; (4). to ensure that medical practitioners and other health professionals meet appropriate standards of education, skill and ethical codes of conduct.

100 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Protect the Right of Health (5). to ensure that harmful social or traditional practices do not interfere with access to pre- and post-natal care and family- planning; (6). to prevent third parties from coercing women to undergo traditional practices, e.g. female genital mutilation;

101 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Protect the Right of Health (7). to take measures to protect all vulnerable or marginalized groups of society, in particular women, children, adolescents and older persons, in the light of gender-based expressions of violence. (8). to ensure that third parties do not limit people's access to health-related information and services.

102 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health (1). to give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation, (2). to adopt a national health policy with a detailed plan for realizing the right to health. States must ensure provision of health care, including immunization programmes against the major infectious diseases,

103 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health (3). ensure equal access for all to the underlying determinants of health, such as nutritiously safe food and potable drinking water, basic sanitation and adequate housing and living conditions, (4). to provide public health infrastructures which provide for sexual and reproductive health services, including safe motherhood, particularly in rural areas,

104 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health (5). to ensure the appropriate training of doctors and other medical personnel, the provision of a sufficient number of hospitals, clinics and other health-related facilities, (6). to promote and the promotion and support of the establishment of institutions providing counselling and mental health services,

105 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health (7). to formulate and implement national policies aimed at reducing and eliminating pollution of air, water and soil, including pollution by heavy metals such as lead from gasoline, (8). To formulate, implement and periodically review a coherent national policy to minimize the risk of occupational accidents and diseases, as well as to provide a coherent national policy on occupational safety and health services.

106 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health Elements of national policy to minimize risk of occupational accidents and disease include: (1). the identification, determination, authorization and control of dangerous materials, equipment, substances, agents and work processes,

107 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health Elements of national policy to minimize risk of occupational accidents and disease include: (2). the provision of health information to workers and the provision, if needed, of adequate protective clothing and equipment,

108 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health Elements of national policy to minimize risk of occupational accidents and disease include: (3). the enforcement of laws and regulations through adequate inspection; the requirement of notification of occupational accidents and diseases, the conduct of inquiries into serious accidents and diseases, and the production of annual statistics,

109 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health Elements of national policy to minimize risk of occupational accidents and disease include: (4). the protection of workers and their representatives from disciplinary measures for actions properly taken by them in conformity with such a policy, (5). the provision of occupational health services with essentially preventive functions.

110 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Special legal obligations – Fulfill the Right of Health Elements of national policy to minimize risk of occupational accidents and disease: See ILO Occupational Safety and Health Convention, 1981 (No. 155) and ILO Occupational Health Services Convention, 1985 (No. 161).

111 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS International obligations In its General Comment No. 3, the Committee drew attention to the obligation of all States parties to take steps, individually and through international assistance and cooperation, especially economic and technical, towards the full realization of the rights recognized in the Covenant, such as the right to health.

112 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS International obligations In the spirit of the Charter of the United Nations, the specific provisions of the Covenant (articles 12, 2.1, 22 and 23) and the Alma-Ata Declaration on primary health care, States parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to health.

113 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS International obligations In this regard, States parties are referred to the Alma-Ata Declaration which proclaims that the existing gross inequality in the health status of the people, particularly between developed and developing countries, as well as within countries, is politically, socially and economically unacceptable and is, therefore, of common concern to all countries.

114 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS International obligations To comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries . . .

115 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS International obligations States parties should ensure that the right to health is given due attention in international agreements and, to that end, should consider the development of further legal instruments. In relation to the conclusion of other international agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to health.

116 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS International obligations Similarly, States parties have an obligation to ensure that their actions as members of international organizations take due account of the right to health.

117 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS International obligations Accordingly, States parties which are members of international financial institutions, notably the International Monetary Fund, the World Bank, and regional development banks, should pay greater attention to the protection of the right to health in influencing the lending policies, credit agreements and international measures of these institutions.

118 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS International obligations States parties should refrain at all times from imposing embargoes or similar measures restricting the supply of another State with adequate medicines and medical equipment. Restrictions on such goods should never be used as an instrument of political and economic pressure.

119 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Core obligations In General Comment No. 3, the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary health care. Read in conjunction with more contemporary instruments, such as the Programme of Action of the International Conference on Population and Development, the Alma-Ata Declaration provides compelling guidance on the core obligations arising from article 12.

120 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Core obligations Accordingly, in the Committee's view, these core obligations include at least the following obligations: (a) To ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups; (b) To ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone;

121 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Core obligations Accordingly, in the Committee's view, these core obligations include at least the following obligations: (c) To ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water; (d) To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs; (e) To ensure equitable distribution of all health facilities, goods and services;

122 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Core obligations Accordingly, in the Committee's view, these core obligations include at least the following obligations: (f). To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process;

123 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Core obligations Accordingly, in the Committee's view, these core obligations include at least the following obligations: (f). they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.

124 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Core obligations The Committee also confirms that the following are obligations of comparable priority: (a) To ensure reproductive, maternal (pre-natal as well as post- natal) and child health care; (b) To provide immunization against the major infectious diseases occurring in the community; (c) To take measures to prevent, treat and control epidemic and endemic diseases;

125 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 II. STATES PARTIES' OBLIGATIONS Core obligations The Committee also confirms that the following are obligations of comparable priority: (d) To provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them; (e) To provide appropriate training for health personnel, including education on health and human rights.

126 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health In determining which actions or omissions amount to a violation of the right to health, it is important to distinguish the inability from the unwillingness of a State party to comply with its obligations under article 12. This follows from article 12.1, which speaks of the highest attainable standard of health, as well as from article 2.1 of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources.

127 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health A State which is unwilling to use the maximum of its available resources for the realization of the right to health is in violation of its obligations under article 12. If resource constraints render it impossible for a State to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above.

128 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health It should be stressed, however, that a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations set out above, which are non-derogable.

129 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations through acts of omission include the failure to take appropriate steps towards the full realization of everyone's right to the enjoyment of the highest attainable standard of physical and mental health, the failure to have a national policy on occupational safety and health as well as occupational health services, and the failure to enforce relevant laws.

130 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Respect Violations of the obligation to respect, are those State actions, policies or laws, that contravene the standards set out in article 12 of the Covenant, and are likely to result in bodily harm, unnecessary morbidity and preventable mortality.

131 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Respect Examples include (1). the denial of access to health facilities, goods and services to particular individuals or groups as a result of de jure or de facto discrimination; (2). the deliberate withholding or misrepresentation of information vital to health protection or treatment;

132 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Respect Examples include (3). the suspension of legislation or the adoption of laws or policies that interfere with the enjoyment of any of the components of the right to health; and the failure of the State to take into account its legal obligations regarding the right to health when entering into bilateral or multilateral agreements with other States, international organizations and other entities, such as multinational corporations.

133 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Protect Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to health by third parties. Examples include: (1). omissions as the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others;

134 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Protect Examples include: (2). the failure to protect consumers and workers from practices detrimental to health, e.g. by employers and manufacturers of medicines or food; (3). the failure to discourage production, marketing and consumption of tobacco, narcotics and other harmful substances;

135 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Protect Examples include: (4). the failure to protect women against violence or to prosecute perpetrators; (5). the failure to discourage the continued observance of harmful traditional medical or cultural practices; (6). the failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries.

136 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Fulfil Violations of the obligation to fulfil occur through the failure of States parties to take all necessary steps to ensure the realization of the right to health. Examples include: (1). the failure to adopt or implement a national health policy designed to ensure the right to health for everyone;

137 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Fulfil Examples include: (2). insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or marginalized;

138 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Fulfil Examples include: (3). the failure to monitor the realization of the right to health at the national level, for example by identifying right to health indicators and benchmarks; (4). the failure to take measures to reduce the inequitable distribution of health facilities, goods and services;

139 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. VIOLATIONS of the Right to Health Violations of the Obligation to Fulfil Examples include: (5). the failure to adopt a gender-sensitive approach to health; (6). the failure to reduce infant and maternal mortality rates.

140 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. Remedies and Accountability Any person or group victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels. Regardless of whether groups as such can seek remedies as distinct holders of rights, States parties are bound by both the collective and individual dimensions of article 12. Collective rights are critical in the field of health; modern public health policy relies heavily on prevention and promotion which are approaches directed primarily to groups.

141 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. Remedies and Accountability All victims of such violations should be entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition. The incorporation in the domestic legal order of international instruments recognizing the right to health can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases.

142 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. Remedies and Accountability Incorporation enables courts to adjudicate violations of the right to health, or at least its core obligations, by direct reference to the Covenant. Judges and members of the legal profession should be encouraged by States parties to pay greater attention to violations of the right to health in the exercise of their functions.

143 Evolution of the Right to Health: Documentary Evidence
International Covenant on Economic, Social and Cultural Rights General Comment No. 14 to Article 12 III. Remedies and Accountability States parties should respect, protect, facilitate and promote the work of human rights advocates and other members of civil society with a view to assisting vulnerable or marginalized groups in the realization of their right to health.

144 Evolution of the Right to Health
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